Opinion
13845 Ind. No. 3458/16 Case No. 2018-02970
05-18-2021
The PEOPLE of the State of New York, Respondent, v. Franklin JOHNSON, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Philip Vyse Tisne of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Philip Vyse Tisne of counsel), for respondent.
Kern, J.P., Oing, Singh, Moulton, JJ.
Judgment, Supreme Court, New York County (Mark Dwyer, J. at hearing; Daniel P. Conviser, J. at jury trial and sentencing), rendered December 12, 2017, convicting defendant of robbery in the third degree, and sentencing him, as a second felony offender, to a term of 3½ to 7 years, unanimously affirmed.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). There is no basis for disturbing the jury's determinations concerning identification. The victim had ample opportunity to view her assailant, during a conversation that extended well beyond a brief demand for money. She gave a fairly accurate description, identified defendant in a prompt and reliable showup near the scene of the crime, and subsequently recognized defendant's voice coming from another part of the police station. Moreover, defendant's statement to the police had a circumstantial connection to a remark made by the robber to the victim.
The court properly denied defendant's suppression motion. The record supports the hearing court's finding that the police did not go beyond a common-law inquiry when they questioned defendant, while other police arrived with the victim. None of the police actions elevated the encounter to a level three seizure requiring reasonable suspicion (see People v. Bora, 83 N.Y.2d 531, 535, 611 N.Y.S.2d 796, 634 N.E.2d 168 [1994] ). Neither defendant's inappropriate citation to trial, rather than hearing, testimony (see People v. Abrew, 95 N.Y.2d 806, 808, 710 N.Y.S.2d 833, 732 N.E.2d 940 [2000] ), nor an officer's use of the word "stopped" in his testimony (see People v. Brown, 22 A.D.3d 349, 802 N.Y.S.2d 155 [1st Dept. 2005], lv denied 6 N.Y.3d 774, 811 N.Y.S.2d 341, 844 N.E.2d 796 [2006] ), nor the fact that a showup identification occurred during the encounter warrants a different conclusion.
We perceive no basis for reducing the sentence.